Director of Public Prosecutions v Togo

[2019] VCC 1575

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01546

DIRECTOR OF PUBLIC PROSECUTIONS

v

NARZZOULI TOGO

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2019
DATE OF SENTENCE:	18 September 2019
CASE MAY BE CITED AS:	DPP v Togo
MEDIUM NEUTRAL CITATION:	[2019] VCC 1575

REASONS FOR SENTENCE
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Subject:

Catchwords:              Sentence – armed robbery – acting in concert – lookout – significant criminal record – early plea of guilty – Koori Court – genuine participation in sentencing conversation with elders – reasonable prospects for rehabilitation

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo (for plea) Ms M. Kiapekos (on sentence)	Office of Public Prosecutions
For the Accused	Ms G. Morgan	Stary Norton Halphen

HER HONOUR: 

1Narzzouli Togo, you have pleaded guilty to one charge of armed robbery.  You were arraigned before me, entered your guilty plea and admitted your prior convictions in the County Koori Court.

2The court then reconvened and you participated in a sentencing conversation with two Elders who sat with me at the bar table facing you.  As I emphasised at the start of the sentencing conversation, the Elders were present to assist me with the sentencing conversation, however the sentence that I impose today is my sentence. They have played no part in the process of determining the appropriate sentence for you.

3The circumstances of the offending are these.  On 2 February this year, you went to the FoodWorks Supermarket in Doveton.  You were arrested there and charged with shop theft and possession of a controlled weapon without excuse.  You were fined for both of those offences on that day.

4The following day, Sunday 3 February, you went back to the FoodWorks Supermarket at about ten to two in the afternoon.  There were two attendants working there at the time.  You went to the doorway of the FoodWorks and demanded cigarettes from those two employees.  You said that you had been promised cigarettes by someone the day before.  Whilst you were demanding the cigarettes, your partner, Heather, and her sister, Susan, came into the FoodWorks store.  Heather was carrying a metal pole and Susan a stove lighter.  They approached the counter and threatened the two employees who were working at the counter.  They, too, demanded cigarettes.

5One of the employees moved away and called the police.  The other remained behind the counter and was threatened by Heather and Susan.  You remained in the doorway of the FoodWorks while this was happening, clearly watching what was going on. The two women, armed with those items, had walked past you as they went up to the counter.

6Heather threatened to use the pole and said to the employees 'I'll kill you'.  Susan spat at her.  As she pushed the duress button, Heather leant over and stole cigarettes and phonecards from a display stand. The three of you then left the supermarket together. 

7It was not until May of 2019 that you were arrested and questioned in relation to this. When questioned, you told the police that you had been to the FoodWorks Supermarket with Heather and Susan.  You said you had gone there to retrieve a packet of cigarettes that had been promised to you by someone the day before.  You were shown the CCTV footage from the day of the armed robbery and acknowledged it showed you standing at the door.

8You told police that you told Heather and Susan that you had been detained in the supermarket the day before and that, as you were driving past the supermarket, Heather decided that they should stop, that you then went in and they followed you.  You told the police that you did not know that Heather and Susan were going to come in armed with the pole and the gas stove lighter.  You said that you were standing and watching. You acknowledged that you did not do anything to try and stop them.  You said that you were shocked and that, because it was your girlfriend and her sister, you felt obliged to at least stay there and observe what was happening.

9By your plea of guilty you acknowledge that you were, by your presence, encouraging and assisting, failing to do anything to stop or to distance yourself from what they were doing.  Further evidence of  your complicity in this, is that you shared in the proceeds of the armed robbery. The cigarettes at least being shared amongst you, Heather and Susan.

10Having been charged, you were remanded in custody and you negotiated your plea of guilty, on the understanding of your role as I have just explained it, at the earliest possible opportunity.

11No victim impact statements have been filed by the two FoodWorks employees.  However, it is not necessary for them to file victim impact statements to imagine the fear that they must have experienced being faced by two women armed with a pole and a stove lighter, threatening to kill them and threatening, obviously by their demeanour, that they were prepared to use the weapons they had, and all for something of very little value, some cigarettes and phonecards.  The fact that you were standing in the doorway keeping watch would have added to the fear of those two employees.  You yourself have acknowledged that.

12It is very clear that armed robbery is a serious offence.  One measure of its seriousness is that Parliament has prescribed a maximum term of imprisonment of 25 years for it.  It is a prevalent offence, it is committed a lot, and often on places like supermarkets, convenience stores or service stations, what we call soft targets: places that are open so that members of the public can go in and buy food and supplies, places that are not protected by security doors or security scanners.  

13Everyone in the community should feel, first of all, that they are safe to go to their work without being threatened by people who are demanding or stealing items that are not theirs.  They should be safe going to work without the fear they are going to be the subject of a hold-up. Everyone in the community should feel that they are free and safe to be able to go into a supermarket or a convenience store without having to go through security scanners, without the fear that there might be somebody who is going to commit an armed robbery,  or threaten to commit a violent offence or an offence of dishonesty.  It is very clear that, subject to considerations personal to you, just punishment, denunciation and deterrence are significant factors in the sentencing mix.

14Now, by operation of s 52H of the Sentencing Act, armed robbery in certain circumstances is described as a Category 2 offence.  If it is a Category 2 offence that means a term of imprisonment must be imposed unless a person falls within one of the exceptions.  Armed robbery is treated as a Category 2 offence in circumstances where the armed robbery was committed in company with one or more persons.  You clearly fall within that category because there were two others as well as you who were parties to this armed robbery.

15After consideration of the matters that were canvassed during the plea hearing and the sentencing conversation, your counsel, Ms Morgan, advised that she had taken the view that there were no matters which had been revealed in the materials that she had already done so much work to collate or in what had come out during the sentencing conversation that would put you into one of those categories that might exempt you from the operation of the mandatory sentencing provision.  It follows, therefore, that the sentence to be imposed must be one of imprisonment.

16Notwithstanding the acknowledgment of the seriousness of the armed robbery offence generally, and despite that mandated requirement to impose a term of imprisonment, Ms Morgan submitted, correctly in my view, that this constituted a relatively low level example of the offence of armed robbery.  There was no preplanning on your part or, it would appear, on the part of Heather and Susan.  It took place over a relatively short period of time.  Although you were the person who made the initial demand for the cigarettes you made no verbal or physical threats yourself to the store attendants.  You yourself were not armed with any weapon.  Those matters all point to it being in the lower category.

17However, I want to make it clear that I do not consider the fact that your role was that of assisting or encouraging your two co-offenders, the two who were armed, or that you were standing in the doorway whilst they approached the counter and threatened the attendants reduces your culpability.  The fact is you saw them enter armed and approach the counter and make their demands.  Even if you did not know until they entered that they were planning to do what they did, even if you did not know until then that they were armed, you did nothing to stop them and you did nothing to disassociate yourself from what they were doing once you were aware of what they were up to. And, significantly, you shared in the proceeds with them, showing again that you were agreeing to what they had done and were prepared to benefit from it. Those are not mitigating factors.  They do not add to what I have already said as to why I think it is in the lesser category.

18At the age of now 25 you have a troubling criminal record.  Just before your 18th birthday you were sentenced in the Children's Court to a period of 12 months' detention in a youth justice centre for an offence of armed robbery.  On the same day you were sentenced for failing to appear on bail and for breach of a probation order that had been imposed in the Children's Court seven months earlier for burglary and theft.

19The sentence of youth detention imposed for the armed robbery was not your first sentence of youth detention.  You had earlier served a sentence of 49 days in a youth justice centre following breach of an earlier probation order for offences including burglary, thefts and criminal damage.  In August 2014, which was your first appearance before an adult court when you were about 21, you were released on an adjourned undertaking on the condition that you attend MDAS for drug and alcohol counselling and treatment.  The offences which that court appearance related to were for theft and committing an offence whilst you were on bail.

20Two years later in 2016, having been remanded in custody for offences that you were charged with, after 66 days of pre-sentence detention was taken into account, the Magistrates Court released you on a community corrections order with treatment conditions.  The offences that that related to covered a broad range, this time including a violence offence, an offence of recklessly cause injury as well as dishonesty offences, again committing offences on bail and drug possession.

21You were then sentenced later on two separate occasions for breaching that community correction order in 2017 and 2018.  On each of those occasions the court confirmed and extended your community correction order giving you further opportunity to participate in drug rehabilitation and treatment and engage with other rehabilitation and support services in the community.

22You were dealt with on a third occasion for breach of that community correction order and, on the third occasion, it was cancelled.  On that occasion, you had spent two days in pre-sentence detention before the court dealt with you for that third breach. It treated the two days in pre-sentence detention as the punishment for the breach of the community correction order and for the resentencing for the original offences.

23By the time that happened you had also been dealt with in the Magistrates Court for breaching a family violence safety notice, for another offence of damage to property and another offence of failing to appear on bail.  As I have recounted in setting out the history of the armed robbery offence for which I am sentencing you, on the very day before you committed this offence of armed robbery you had been arrested and immediately dealt with by the Magistrates’ Court by being fined for attempted shop steal from FoodWorks and possession of a controlled weapon.

24This is indeed a sorry history.  The fact that you have a previous conviction for armed robbery before you turned 18 and in respect of which you served a sentence of youth detention, including a period of release on parole, is a particular concern.  So too is the fact that on almost every occasion when you have come before a court for sentencing you have been placed on orders which permitted you to remain in the community but which required you to participate in supervision, drug and alcohol treatment or anger management and other behavioural management programs and you breached each of those rehabilitative orders or conditions.

25It is not surprising, with such a history of offending at a relatively young age, that behind it lies a history of substance abuse, early disengagement from school, no employment and no real employment skills and disconnection from family. 

26You were born and raised in Mildura.  Your parents separated when you were young.  You described your mother to Dr Aaron Cunningham, the psychologist who assessed you for the purposes of the plea, as being good, caring and loving.  You report though having had no contact with your father once he left the family when you were very young. You tried unsuccessfully to re-establish a relationship with him a few years ago but you reported he was not interested in doing so.

27Although your mother re-partnered, it would appear that you did not form any relationship of significance with her new partner or partners and you consider yourself to have grown up essentially fatherless, without any fatherly love or guidance.

28When you were in your mid-teens, your mother and her partner moved to Queensland.  You initially went up there with her but within a month you had returned to Mildura because you did not get on with her partner.  You then moved in with your grandmother but it would appear that from then on your life really drifted.

29You reported having no trouble with your schooling up until the time you completed Year 10 and left school.  You are competent in reading and writing and said that you enjoyed school but could not really explain why you had left except that you appeared to then be mixing with a group of people who, like you, had left school and were not working, who, like you, were using cannabis and then drifting towards more serious or other drugs and who were engaging in petty crime.

30You began, but did not complete, a number of vocational TAFE courses and at the age of 25 you have never had a job.  As you described it and as
Dr Cunningham then described it, your friendship group's lives seem to be characterised by idleness, substance abuse and petty crime.  You told Dr Cunningham you did not know why you had associated with people like that rather than those who had jobs, had stability and were not abusing substances.  It does seem that you are more of a follower than a leader and, interestingly, having regard to the circumstances of this armed robbery, Ms Morgan tells me that your role in the earlier armed robbery, the one that you were dealt with for in the Children's Court, was that of a lookout.

31At some stage, it would appear from when you were about 18 or 19, you moved from Mildura to the Dandenong area.  By then you had met Heather, your partner, and one of your co-offenders in this armed robbery.  By the time of this offending you and Heather had had two children together, two boys who are now aged two and one.  Both boys have been in the care of DHHS for some time.

32Heather was pregnant with your third child at the time of the armed robbery.  You were remanded in custody after your arrest in May. Heather was remanded in custody in July, by which time she was about eight months pregnant, I was told.  It would appear that the relationship with Heather has been unstable and that you have had no contact with her since she was remanded in custody.  Sadly, there was no one at court with you to support you from your family and you report not even knowing whether your third child has been born.  You assume so because of the timing but you have not been told nor had any contact with anyone about that.

33Both you and Heather report long-term histories of substance abuse, particularly ice.  You report being uncertain as to whether your relationship with Heather will continue upon your release.  Certainly, from what you say, the two of you at times were perpetuating each other's drug use and efforts each of you might have made individually seem to have been unsuccessful if one of you relapsed.

34Although you identify as a Barkindji man from Mildura, and you were, in your early contact with the juvenile justice system, referred to MDAS, and since you have been remanded in custody you have had contact with Aunty Cora, an Aboriginal liaison officer, you report otherwise having had little contact with your culture and your awareness of your cultural roots and connections.

35You report now, however, being keen to reconnect and learn more about your history, your culture, your background and that of your mob.  It is that desire to reconnect with your culture that led to your successful application to have this matter heard in the County Koori Court. Participation in a sentencing conversation through the County Koori Court is no easy option.  As the Court of Appeal noted in the recent case of DPP v Heyfron,[1] participation in the process of a Koori Court is more burdensome than appearing in a traditional plea hearing and that is particularly so where, as in this case, you have sought to reconcile with your indigenous heritage and to connect with the enduring mores and values embedded in it.

[1][2019] VSCA 130.

36During the sentencing conversation the Elders spoke directly to you.  They held you accountable for your conduct and shamed you for your offending behaviour.  They did not allow you to minimise your participation by saying that you did not know about it in advance, that you yourself were not armed or that you simply stood by and did nothing.  They made the very points that I have earlier referred to as being relevant to the assessment of the gravity of the offending and of your role and you in turn were prepared to speak directly with and engage with the Elders and to accept responsibility.

37The Elders also spoke to you about the positive benefits of discovering more about your heritage and connecting with your culture.  They encouraged you to begin the journey during your time in prison and to engage with the many indigenous services and organisations available to you in prison and, more importantly, upon release.

38They were very direct with you about your need to engage in meaningful drug and alcohol rehabilitation if you were to be able to maintain your clearly expressed desire to obtain vocational skills, get a job and reconnect with your children.  Your sincerity was obvious when you said that you wanted to be a good father and a father who was present for your children.  You spoke of the contrast to what you had experienced during your childhood, not having a father present, and how much you wanted to be able to give your children something different, a father who was present and who could show, through his presence, his love for his children.

39You acknowledged that if you continued on the substance abuse and offending path that you have been on, your sons, too, would be deprived of the meaningful presence of a father in their lives.  They encouraged you to continue the contact that you have had with your sons and to use that as a goal to remain drug and offence-free and to encourage cultural connection upon your release.

40They spoke to you about the importance of setting small goals, day-to-day steps, and not being overwhelmed by looking too far ahead.  For your part, as the sentencing conversation continued, you volunteered more about your hopes for the future.  You told us about the courses in which you had already participated in custody, of the other courses that you had enrolled for and were waiting to be accepted in and of the courses that you hoped to be able to do once sentenced in order to give yourself vocational skills and make yourself job-ready upon release.  You acknowledge that you needed to meaningfully engage with assistance in respect of your substance abuse and with managing your relationship with Heather upon your release. 

41At the end of the sentencing conversation you spontaneously thanked the Elders.  You said, and I was really struck by this, that this was the first time that you had spoken to or been spoken to by Elders.  You thanked them for talking to you about how you could make better choices and for the practical advice that they had given you.  I am satisfied that you participated in a meaningful way in the sentencing conversation.  The materials before me indicated that you do not have high-level skills in expressing yourself and your presentation during the sentencing conversation was consistent with that.  It was all the more significant then that you expressed your gratitude in the way you did at the end of the conversation.

42You accepted the Elders' condemnation of your conduct and I accept that you were shamed as part of this process.  Instead of being able to sit back whilst your counsel made submissions, as would happen in mainstream plea hearings, you spoke directly to the Elders.  You listened openly to their advice and accepted it.  You responded seriously and thoughtfully to their questions.  In doing so, I am satisfied that you demonstrated your remorse for your offending, some insight into it and some insight into the need to change and the ways you might be able to go about changing so as to have a happier, more meaningful life in the future.

43Whilst your plans at the moment are perhaps characterised as aspirational rather than developed into specific action plans as to how to manage your rehabilitation, you have shown yourself willing to accept assistance offered to you, to seek out assistance and to participate in rehabilitation programs that are available to you.  All of these are matters which were identified by the Court of Appeal in Honeysett v The Queen,[2] another Court of Appeal decision that dealt with the significance of participation in a sentencing conversation through the County Koori Court and is relevant to the assessment of the weight to be attached to your participation in the sentencing conversation.

[2](2018) 56 VR 375.

44I am satisfied, therefore, that it is appropriate to take into account as a significant mitigating factor and as a factor relevant to a more positive assessment of your prospects for rehabilitation, your participation in the manner in which you did in the sentencing conversation.

45I also take into account your plea of guilty and the early stage at which it was entered, that is at committal mention.  It is significant, not only for its utilitarian benefits, but because it, too, is evidence of your remorse and a desire to change your ways.  I take into account your youth.  You were 24 at the time of the offending and you spent your 25th birthday in custody.  You have wasted your formative years of early adulthood on drugs and idleness and at a time when it is known that the brain of the young person is maturing.  The authorities that bind me are clear that allowance must be made in an appropriate case for the inability of an immature brain or a still maturing brain of a person under 25 to properly appreciate the consequences of their conduct or engage in the kind of long-term planning we can expect of people who have reached proper mature adulthood.

46You are now at an age when your brain should be maturing, and if you remain drug-free, as you appear to have been since you were remanded in custody – you produced some positive drug screens and told us about that – you should be better equipped to start to truly acknowledge the impact of substance abuse on your offending behaviour and to engage in meaningful rehabilitation to prepare you for the inevitable temptations to relapse into drug use that you will face upon your release into the community.  I see your desire to be a present father to your children as a very significant factor in your rehabilitation generally and in your commitment to drug rehabilitation specifically.

47Cognitive functioning testing was conducted by Dr Cunningham.  The full scale score of your intellectual functioning, according to the tests administered by him, suggest that you have relative strengths in non-verbal reasoning and a significant weakness in verbal reasoning and processing speed.  This can lead to difficulty in communicating and managing emotions and conflict and explains why you may become overwhelmed when rushed or presented with multiple stimuli and that certainly seems to be consistent with what I learned and what we learned of your pattern of life in the last few years.

48Hands-on learning is likely to be much better for you than book learning.  You clearly have the capacity to develop life and vocational skills, to be able to learn the discipline of regular employment, to engage in drug rehabilitation and to learn parenting and relationship management skills that will  equip you to lead a better life upon your release.  You are clearly motivated at present to do all of these things and they, too, count as positive factors in your favour.

49It is clear, having regard to your previous convictions and the early stage of your participation in assisted management of your substance abuse, that some weight must be given to specific as well as general deterrence in the sentence.  I consider that overall your prospects for rehabilitation are reasonable, if you can engage in a meaningful way with drug rehabilitation, obtain employment and see employment as a meaningful end in itself. 

50Your prospects for rehabilitation will be improved if you are able to change the circle of people with whom you mix, moving away from those whose lives centre around substance abuse and unemployment, and mix with those who are substance-free and in employment.  Again your prospects for rehabilitation will be further improved if you are able to increase your meaningful engagement with your children and that, in turn, means an incentive to demonstrate to DHHS that you are substance-free, have learned better parenting skills and can therefore be trusted and encouraged to spend more time with your children and to work towards reunification with them.  That is, I think, probably the most significant factor in assessing your prospects for rehabilitation.

51Taking all these matters into account and acknowledging that ultimately it will be up to you, I have structured the sentence to be imposed so as to encourage you to engage in vocational and rehabilitative programs during the balance of your sentence and to best prepare yourself for release.  Whilst a decision as to whether to release you on parole is one for the parole authorities and not me, I consider it clearly to be in the interests of the community, as well as in your best interests, to provide you with a structured return to the community with the supports and assistance that parole can provide.

52I recommend that, whilst in custody, you be given access to programs, particularly programs specific to you and to your indigenous heritage, that will help prepare you for parole and a structured return to the community and I recommend that preparing for a supported return to the community on parole be considered an important part of planning for your release.  I have therefore allowed for a considerable gap between the head sentence and the non-parole period to allow you to work towards that and to encourage the Corrections authorities to assist you by making programs available to you to help you along that path.

53Could you now please stand, Mr Togo.  Narzzouli Togo, on the charge of armed robbery you are convicted and sentenced to be imprisoned for a period of three years.  I fix the period of 18 months as the time that you must serve before being eligible for parole.  I declare that you have spent 134 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

54I declare pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of four years and six months and I would have fixed a period of three years and three months as the time to be served before being eligible for parole.

55I want to make it clear that the sentence is three years with a non-parole period of 18 months, with that 134 days that you have already spent in custody being deducted.  I hope that you are able to continue on the journey that you have clearly set yourself on and that those hopes that you so clearly expressed will sustain you during the balance of your time in custody and as you do those programs and that this will be the last time that you come before this court for a sentencing process.

56It would be a great joy if you came before a court again assisting and supporting other young men who had lost their youth but who had found the way with the support and help available to them to lead a more meaningful life and that you can be saying to them, 'Don't do what I did but rather look at what you can do if you've got help and support around you and you're prepared to avail yourself of it'.

57I also must make an order for the taking of a forensic sample.  I have decided that it is appropriate to make that order in the circumstances, having regard to the nature of this offence and to your prior convictions.  I must advise you, Mr Togo, I am making that order for the taking of what is called a buccal sample, that is a swab of the mouth.  You are required to put something like a cotton bud on the inside of your mouth and rub it around until a sufficient sample has been obtained.  If you do not cooperate in the provision of the sample by that means, the police are authorised to use reasonable force and may well use the more invasive means of obtaining a forensic sample, that is of taking a blood sample.  Do you understand that?  Thank you.

58Any further orders that are required to be made?

59MS KIAPEKOS:  No, your Honour.

60HER HONOUR:  Do the orders that I have pronounced reflect what I intended to do?

61MS KIAPEKOS:  They do, your Honour.

62HER HONOUR:  All right, thank you.  Could you remove Mr Togo, please.  Thank you, everyone, for your assistance.

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